Indian Child Welfare Act Margaret Burt, JD, Karen Matthews, LMSW, Hon. Anne Simon Together We Can November 7, 2017

Preliminaries Introduce presenters Survey audience: DCFS? Attorneys? Judges? Foster Parents? Others? PURPOSE: What everyone involved in CINC cases needs to know about ICWA and why they need to know it, UPDATE on the implications of the 2016 FINAL RULE, and pending court challenges HAVE YOU HAD ISSUES WE MIGHT HELP WITH?

WHY WE NEED TO KNOW ICWA 1. ICWA is important for the preservation of Indian culture. 2. Nationwide, invalidations of adoption proceedings are being actively pursued – consequences of invalidations are tragic for children and families. §1914: Invalidations lie for any placements violating §§1911, 1912, 1913. 3. ICWA is broader than generally believed. In effect whenever child removed

RECENT BIG CHANGES “Baby Veronica” SCOTUS 6/25/13 interpreted ICWA in a private adoption case. NEW REGULATIONS! 25 CFR 23 - 12/12/16 NEW GUIDELINES Issued December 2016

Indian people have a long and proud history of strong families and tribes

BEFORE ICWA Abusive child welfare practice separated 30% of Indian children from their families. CHILDREN REMOVED TO BOARDING SCHOOLS Well into the 20th Century ADOPTIONS TO NON-INDIAN FAMILIES Multiplied in 1950s IMPACT CONTINUES FOR GENERATIONSÍ

Boarding School Era 1800 – 1950’s Schools initially operated by U.S. War Department Children often did not return home for several years. Some report not recognizing their parents they had been gone so long. High mortality rate in schools-some reported 50% Education was seen as “civilizing” children. In truth children were taught to be domestic staff and farmers. Children were forbidden from speaking their native languages, corporal punishment was widely used. Efforts were targeted at children in earnest. 7

 

Crisis In a 1969 survey of 16 states, 85% of Indian children in foster care were placed in non-Indian homes In South Dakota 40% of all adoptions 1967-68 were Indian; Indian population of state was 7% In North Dakota and the Northwest, studies showed that only 1% of Indian children were removed due to allegations of abuse

1977-78 Congressional Hearings Witness after witness testified about the removal of Indian children, often without a scintilla of due process In 1971, 34,538 Indian children lived in institutional facilities On the Navajo Reservation, 90% of BIA school population in K-12 lived in boarding schools

What about the treatment of Louisiana Native Tribes? Difficult to find specific data or evidence Look at the result? Attakapas gone Of the four federally recognized tribes, only Chitimacha live on native lands

Congressional Findings Congress has plenary power over Indian affairs Congress has assumed the responsibility for the protection and preservation of Indian tribes and their resources There is no resource more vital to the continued existence and integrity of Indian tribes than their children An alarmingly high percentage of Indian families are broken up States have often failed to recognize the essential tribal relations of Indian people and the cultural and social standard prevailing in Indian communities and families

ICWA was enacted by the US Congress in 1978 Congress explicitly found that part of the trust responsibility of the United States is: To protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and placement of such children in foster homes . . which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs. Codified at 25 USC Section 1902.

ICWA --- §1902 Congressional Declaration of Policy It is the policy of this Nation to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture . . .

ICWA is a work in Progress Policy is only the first step Financial Resources and Enforcement sorely needed Original law provided tribal grants for welfare services 1980 – Availability of IV-E funding Tribes still behind in access to services Applicability of ICWA not universally recognized in state courts INDIAN CHILDREN IN CARE STILL OVER-REPRESENTED

WHAT DOES ICWA DO? Recognizes the special status of Native Americans and acknowledges that past policies adversely impacted Indian families and tribes Outlines prerequisites to removal of Indian children, placement preferences, requires qualified expert testimony, and provides for enforcement of the protections

Make Sure: Make sure you are using the NEW regulations and the NEW Guidelines when you are looking up the law Of course case law not really there yet but New Regs and New Guidelines have lots of commentary built in

Why after all the years are there now new regs and new guidelines? Continuing concern that ICWA is not being adhered to by state agencies and state courts Continuing concern of variations in state court application of ICWA A desire to clarify some of the issues and confusion in the federal guidelines from 1979 and the ones from 2015 Have the force of regs – and also a “guidance”

The Key Questions 1. Is this an ICWA child? 2. Is this an ICWA action? 3. What is the proper jurisdiction? 4. Who needs to be noticed? 5. What are the special evidentiary rules if the matter stays in state court? 6. What are the placement preferences? What is impacted by the new federal regulations and the new federal guidelines?

Question 1 Is this an Indian child under the Indian Child Welfare Act? § 1903 (4)

WHO IS AN INDIAN CHILD? A POLITICAL QUESTION Unmarried and Under 18 years old and Member in a federally recognized tribe or Eligible to be a member and the biological child of a member NOTE: Statute uses term “member” some tribes use other terms like enrolled

New Regulations If child was ICWA before age 18 and the proceedings continue after age 18, ICWA will continue to apply §23.103(d) Requires that in every emergency, involuntary or voluntary proceedings, the court must inquire if anyone knows or has reason to know that the child may fit the ICWA definition § 23.107(a) IF the court does not know, must be diligent efforts with tribes who may be child’s tribe to find out § 23.107(b)(1)

New Regulations If there is reason to think the child may be ICWA, court MUST apply ICWA until there is confirmation that the child is not ICWA § 23.107(b)(2) WOW!

OK, so what does that mean Court must ask all participants at the beginning of the proceeding and record responses on the record, must instruct the parties to inform the court if they receive info Confirm on the record due diligence of agency or other party to ID and work with tribes to determine membership/eligibility Treat the child as an ICWA child if reason to know

“Reason to Know” § 23.107(c) Anyone in case, any attorney, any tribe or tribal organization or agency says the child is Indian or that they have discovered info that indicates child is Indian Child gives the court reason to know Court learns that child or parent’s domicile is on a reservation Court learns child is or was a ward of a tribal court Child or parent has a tribal ID cards

What makes a child a “member” or eligible to be a member? What are the tribes membership? Again – may use different terms , such as enrollment

ISSUES Is membership about blood quantum? How will agency, court learn membership rules? What about the Multi Ethic Placement Act of 1994 and the Inter Ethnic Adoption Provisions Act of 1996?

REMEMBER… There are over 500 other federally recognized tribes in the US, and any child in your state could be a member or eligible to be a member of any of those

Bottom Line: Only the sovereign entity of the tribe can determine if the child is an ICWA child as only they can determine if child is a member or enrollable as a member and a child of a member Reinforced by the new regs – state court MAY NOT substitute the judgment of a tribe regarding a child being a member, being eligible to be a member or that a parent is a member § 23.108

Question 2 Is this an action or proceedings that requires the application of the Indian Child Welfare Act? § 1903(1)

TO WHAT LEGAL PROCEEDINGS DOES IT APPLY? Child being placed in foster care due to abuse/neglect (or transferred) Child being placed on status offenses or voluntary where child cannot be returned upon demand

MORE APPLICATIONS Child custody with non-parent Termination proceedings Pre-adoptive placements Adoptions—including stepparent, public and private

Does NOT apply to: Divorce or Custody Between Two Parents Juvenile Delinquency, Criminal Acts Paternity /Support Domestic Violence Totally Voluntary/At Will Placements

New REGs Clarifies that ICWA applies to a placement that might be “consented to” by the parent or Indian custodian but that this was done under threat of removal by the court or the agency Clarifies that “upon demand” means that a mere verbal request returns the child and if there is anything more needed then a verbal request, the placement is NOT voluntary

NEW Regs While a “voluntary” placement into foster care that strictly allows the child to be returned upon verbal request of the parent or custodian is not covered by ICWA – unless there was a threat of removal by the court or the agency – a “voluntary” adoption is always covered by ICWA Parties in a voluntary must state on the record if the child is an Indian child or reason to think so and state court must ensure that steps are taken to verify tribal status

PROTECTS: Indian children Bio parents of Indian children (even if they are non-Indian) Indian custodians

What do the new regs have to say In determining that the matter is ICWA, the state court may not consider if the parents participate in tribal activities, may not consider the relationship of the child with the Indian parent, if the parent has ever had custody or the child’s blood quantum Also says that “continued custody” includes legal or physical custody or both as interpreted by tribal law, custom or state law

Question 3 Where is the case heard? Who has jurisdiction? State court? Tribal court? Both? § 1911

Concepts Exclusive jurisdiction – only can be handled by a tribal court Transfer – can be moved from state court to tribal court Right to Intervene – tribe can be involved in the state court action § 1911

INDIAN TRIBE EXCLUSIVE JURISDICTION § 1911(a) – in a voluntary or involuntary: 1.Indian child who is a ward of a tribal court OR 2. Indian child who resides or domiciled on a tribal reservation where tribe exercises exclusive jurisdiction over child custody proceedings – state court can determine residence or domicile Mississippi Band of Choctaw v Holyfield 490 US 30 (1989)

New Regs on “Domicle” §23.2 For parent – place person regards as home, place person intends to return and live indefinitely even if person may be currently residing elsewhere For child – the domicle of the child’s parents, if born out of wedlock, domicle of the custodial parent

EXCEPTIONS TO EXCLUSIVE JURISDICTION RULE Older federal law allowed for concurrent jurisdiction with state courts but now some tribes have retroceded

New Regs §23.10 If exclusive jurisdiction – state court must notify the tribal court that it will dismiss, must then dismiss and make sure all info is sent to the tribal court such as pleadings and court record

STATE COURT JURISDICTION In an voluntary or involuntary placement Indian child who does not live on the reservation BUT subject to transfer to a tribal court or to intervention by tribe in state court proceeding So if it is not exclusive jurisdiction to tribal court the two options are: Transfer or Intervention § 1911 (b) and (c)

Transfers to Tribal Court Tribe or parent can ask for the transfer at any time Either parent (tribal or not) can oppose and stop the transfer State court must transfer if both tribe and parents want it and can only retain jurisdiction if there is “good cause” Court can transfer case but child can stay in state care

New Regs Transfer request can be made orally or in writing §23.115(a) Available “at any stage” in each proceedings §23.115(b) Notify the tribal court of the transfer request and may request timely response to question of tribal court declining § 23.117

New Regs on Transfer Entity seeking refusal must state their good cause arguments on the record, other parties must be given opportunity to respond §23.118 (a)(b) Court must state basis if denying transfer on the record § 23.118 (d) If transferred – all records go to tribal court §23.119

Good Cause to Refuse Transfer? §23.118 Either parent or tribe says they do not want it to transfer will stop transfer “Advanced Stage” when notice was not provided until advanced stage? NO Not sufficient connection to tribe? NO Prior proceeding where no request was made? NO Transfer might affect placement? NO Socio economic conditions or negative perceptions of tribes social services or court? NO

TRIBAL INTERVENTION IN STATE COURT Tribe’s right At any time – including appeals! Parent, agency, child, court cannot prevent Even where not going to appear in person Not specifically listed for adoption proceedings

ICWA APPLIES EVEN IF TRIBE DOES NOT APPEAR OR IS UNABLE TO BE INVOLVED REMEMBER ICWA APPLIES EVEN IF TRIBE DOES NOT APPEAR OR IS UNABLE TO BE INVOLVED

Question 4 The parents or Indian custodian The child’s tribe Local BIA § 23.11 (a) By registered mail with return receipt requested OR NEW under the regulations – certified mail with return receipt requested § 23.111(c) Who gets noticed? § 1912 § 23.111 In an involuntary foster care placement or involuntary TPR

New Regs § 23.111 (e) If identity or location of parents, or tribe cannot be ascertained but there is reason to know child is Indian, notice is to be sent to the Regional Director in each BIA Regional office with as much info about the hcild’s ancestors as possible. BIA Regional office will not determine if child is ICWA but will make reasonable and documented efforts to help locate the child’s tribe, the parents/the Indian custodian

Notice Formal notice must be done exactly as law describes Each “new” proceeding requires notice Notice goes to all parents and custodians – even if not tribal Do not need to notice if it is a wholly voluntary placement in foster care Can ALSO do electronic or personal delivery – but not as a substitute

New Regs Party seeking placement sends the notices Court who knows or has reason to know child is Indian must ensure that party has sent notice by copies filed with the court and the return receipt Must include list of info from the regs, copies of pleadings, list of rights If tribe or parent cannot be IDed – notice must be sent to regional BIA office with as much info as possible

Question 5 What are the special evidentiary rules that have to be applied if the matter stays in state court?

New Clarity What ICWA rules apply in what proceedings? Emergency- § 23.2 (d) Voluntary - can get child returned by simply asking, no procedures or conditions, not sue to threat of involuntary Involuntary § 23.2 (i)

Emergency Proceedings ISSUES § 1912 (d) and (e) and new reg § 23.112 “Active efforts” – New Regulations give examples, stress actually accessing services and using culturally appropriate services Court must find that emergency placement is needed to prevent imminent physical damage or harm Must cease placement immediately if no longer necessary to prevent harm - new hearing if there is new

Absent extraordinary circumstances, no emergency or temporary removal of an ICWA child should occur for more than 30 days without the proper ICWA removal procedures 30 days and then terminate the emergency proceeding by: 1. “Initiation” of a child custody proceedings- ie a foster care placement, TPR, preadoptive or adoptive placement proceedings or 2. Transfer child to tribal jurisdiction or 3. “Restore” child to parent or Indian custodian

Extraordinary Circumstances to go beyond 30 days? §23.113 (e) 1.Restoring child to parent or custodian would subject the child to imminent physical damage or harm AND 2. The state court has been unable to transfer the matter to tribal jurisdiction AND 3. It has not been possible to initiate a child custody proceeding – ie a foster care placement, TPR, preadoptive or adoptive

What are “active efforts”? Efforts by the state to provide remedial services and rehabilitative programs that have not been successful MORE than “reasonable efforts” CLEARLY meant to include working with tribe and seeking tribal resources New Regulations say must be done up to start of proceedings – gives examples – requires that court must document them on the record

Emergency Proceedings Can place for up to 30 days using proper state law procedures but then must apply ICWA procedures – the notice, the higher burden of proof, the QEW WHEN does an action move from an emergency proceeding to a placement proceeding where all ICWA rules apply?

Emergency Proceedings – CAVEAT!! If you have reason to think it may be an ICWA case: 1. TELL!! 2.Tribe SHOULD be notified even informally 3. Placement priorities should be strongly considered so that you don’t have to move the child unnecessarily HOW LONG should it be considered an “emergency” placement?

Involuntary Placement of the Child Active Efforts Qualified expert witness Likely to result in serious emotional or physical damage if child remains Clear and convincing burden of proof

Involuntary Placement of Child or TPR – New Regs § 23.121 Must show casual connection between conditions in the home and that continued custody by the parent or India custodian would result in serious emotional or physical harm Poverty or age of custodian without proof of a causal connection is not enough

When are ICWA experts (QEWs) used? Required to testify in court where ICWA child and requested Removal from Home or Termination of Parental Rights Possibly advise agency, tribe and court where ICWA child on placement decisions Can ask the tribe, or the local BIA regional office for help in locating a QEW

Who is this QEW and what are they supposed to do? NEW REGS - MAJOR CHANGE - § 23.122 Person must be able to testify as to prevailing social and cultural standards of the child’s tribe and testify to continued custody likely to result in serious emotional or physical damage Can be designated by the child’s tribe Cannot be the sate social worker assigned to the Indian child’s matter

Who has to offer the expert’s testimony. Is it paid for Who has to offer the expert’s testimony? Is it paid for? Can there be more than one witness? If there is no objection to what is occurring, will there still have to be a QEW testifying? Court should determine if offered person is proper QEW and make that ruling

So what kind of things would an expert need to know about? the tribe’s history how children are viewed by the tribe child rearing in the tribe use of discipline cultural expectations tribe’s services family’s history protective issues in family particular incidents this child’s needs agency responses tribe and family view of situation

TPR ISSUES ASFA applies – including the exceptions! § 1912 (f) Qualified expert Return home would likely result in serious emotional or physical damage Beyond a reasonable doubt burden of proof Active efforts – must be documented by the court

TPR – New Regs Must show casual connection between conditions in the home and that continued custody by the parent or India custodian would result in serious emotional or physical harm Poverty or age or custodian without proof of a causal connection is not enough

Voluntary Placement or Surrender Definition of “voluntary” Notice not required HOWEVER, must determine if child is ICWA so must communicate with tribe and if parent wants anonymity, there is still and obligation to find out if child is ICWA § 23.107 (d)

VOLUNTARY PLACEMENT OR SURRENDER ISSUES § 23.125 Consent must be in writing and before a family court type judge for voluntary placements or surrenders with record kept Judge’s certificate, language of parent More than ten days after the birth for a surrender §23.125(e) Explain terms, consequences and limits on the record Can be in closed court if parent wants § 23.125(d)

ADOPTION ISSUES Revocable before final decree, return to parent Adoption can be vacated on fraud/duress grounds-, notice, hearing-return to parent §23.136 No adoption can be vacated after two years Where a parent who is consenting to an adoption wants anonymity, court and tribe must keep info confidential, also court can be closed

What if an adoptive parent later surrenders an ICWA child? There can be a petition to return the child to the birth parents- § 1916 Court must notice birth parent if adoption vacated or set aside or adoptive parent surrenders child, give info to allow parent to participate – this could be waived and waiver can be revoked § 23.139

Question 6 What are the placement preferences? Placement preferences apply in all foster care, preadoptive or adoptive placements – including voluntary but if parent wants anonymity in a voluntary, the court can take that into account in looking at the preferences § 23.129

Concepts Placements in descending order Don’t move to the next one without documenting reason Specify why moving to next level in court order There are good cause arguments Tribe can change preferences and child and parent’s positions can be considered

FOSTER CARE PLACEMENTS Family setting, sibling attachment, reasonable proximity to their home, family, sibs, special needs Preferences - § 1925 (b), §23.131 1.extended family – Indian and non Indian family 2.foster home licensed, approved, or specified by tribe 3.Indian foster parents licensed or certified by state/county/ authorized agency -- NEW Reg says at least one of the foster parents must be Indian as per ICWA definition § 23.2(h) 4. institution approved by a tribe or operated by a tribe

Foster Care Placements §23.131 (c), (d) Tribal resolution can establish different preferences and they would then apply provided it is least restrictive and appropriate to the child’s needs Can consider the preference of the child or the parent

ADOPTIVE PLACEMENTS Preferences – §1915 (a) and § 23.129 1. Extended family members – Indian and non Indian family 2. Members of child’s tribe 3. Other Indian families If tribe has a resolution for different order of preferences, tribal preferences will apply Court can, where appropriate consider the preference of the parent or child !

New Regs – When can you depart from preferences? § 23.132 - Party who wants to deviate must state why/reason for deviation on the record, in court or in writing to all the parties and that party has burden of proof by clear and convincing evidence that there is good cause to deviate Court that is going to deviate must state good cause on the record New Regs – When can you depart from preferences?

NEW REGS – Can you deviate? Tribe has described different preferences by tribal resolution Request of parents for anonymity in a voluntary procedure, - court give weight Request of parent after all reviewing options Request of mature child Presence of sibling attachment Extraordinary needs of the child Nothing available at each level after diligent search, active efforts to locate

New Regs – When can you deviate from preferences? When determining that there is no suitable placement at a level of preference must conform to the prevailing social and cultural standards of the Indian community of the parents Good cause to deviate must include that a diligent search was conducted to find suitable placement within the preferences but none was located

Not Good Cause - “Ordinary” bonding with placement family that did not comply with ICWA – NO! Court may not deviate due to socio- economic differences in placement alternatives

New Regs §23.133, 23.134 State court should allow persons to participate by telephone, video conference Every party to an emergency proceeding a foster care placement or a TPR has right to examine all documents filed in court

Right to counsel for parents and custodians § 1912 (b) Right to counsel for parents and custodians

§ 1917 and § 23.138 Rights of Adult Adoptees to Adoption Records

New Regs Adoptee over 18 can ask court who did adoption to provide information that would show possible tribal affiliations and state court must inform adoptee

NEW Regs State Court must provide a copy of an order regarding a voluntary or an involuntary adoption or adoptive placement of an ICWA child within 30 days to BIA in DC The BIA will now have central files of state adoptions of Indian children

New Regs -§ 23.141 States must maintain records of all voluntary and involuntary placements in foster care, placements in preadoptive homes, and adoptive placements of ICWA children and must make those records available within 14 days to the child’s tribe or the BIA if they ask for the records.

Law and Best Practice Bulletin ‘16 Available from Pelican Center, distributed to Judiciary Explains issues emphasized in Final Rule 2016

Where do we go for guidance? Louisiana cases from 2nd Circuit Hampton v. JAL 658 So.2d 331 (1995) foreshadows Baby Veronica – child not removed from Indian environment Owens v. Willock 690 So.2d 948 (1997) tribe has exclusive jurisdiction of ward of tribe With so little jurisprudence, we rely on 2016 RULE, Cases from other states, study of the provisions of ICWA

RESOURCES THE LAW: 25 U.S.C, 1901-1963 2016 RULE – 25 CFR Part 23 – www.nicwa.org - National Indian Child Welfare Association www.narf.org/icwa -Native American Rts. Fund www.clarola.org - Native American and Tribal bullet

FAILURE TO FOLLOW ICWA? Parent, Indian custodian or tribe may petition to invalidate a state court order which was in violation of Sections 1911- jurisdiciton,1912 – notice, timing, rules of evidence or 1913 – surrenders/consents – § 23.137 NEW – Regs say child can petition to invalidate and new Regs say person who moves to invalidate, need not prove that his/her rights were violated, only that the law was violated

Failure to Follow ICWA? Most Important! Child could lose an important connection Tribe could lose an important member Family could lose important and extra help

ASK and TELL ! Caseworkers, court and attorneys should make it routine to ask ICWA findings at every stage clearly documented in court order

STEPS Training on new law and a good time to refresh on all concepts Agency forms and procedures have to be changed Court procedures have to change